(Slip Opinion)
OCTOBER TERM, 2020
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION v.
ALSTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 20–512.
Argued March 31, 2021—Decided June 21, 2021*
Colleges and universities across the country have leveraged sports to
bring in revenue, attract attention, boost enrollment, and raise money
from alumni. That profitable enterprise relies on “amateur” studentathletes who compete under horizontal restraints that restrict how the
schools may compensate them for their play. The National Collegiate
Athletic Association (NCAA) issues and enforces these rules, which restrict compensation for student-athletes in various ways. These rules
depress compensation for at least some student-athletes below what a
competitive market would yield.
Against this backdrop, current and former student-athletes brought
this antitrust lawsuit challenging the NCAA’s restrictions on compensation. Specifically, they alleged that the NCAA’s rules violate §1 of
the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.” 15 U. S. C. §1. Key facts
were undisputed: The NCAA and its members have agreed to compensation limits for student-athletes; the NCAA enforces these limits on
its member-schools; and these compensation limits affect interstate
commerce. Following a bench trial, the district court issued a 50-page
opinion that refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic
performance. At the same time, the court found unlawful and thus
enjoined certain NCAA rules limiting the education-related benefits
schools may make available to student-athletes. Both sides appealed.
The Ninth Circuit affirmed in full, holding that the district court
——————
* Together with No. 20–520, American Athletic Conference et al. v. Alston et al., also on certiorari to the same court.
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Syllabus
“struck the right balance in crafting a remedy that both prevents anticompetitive harm to Student-Athletes while serving the procompetitive purpose of preserving the popularity of college sports.” 958 F. 3d
1239, 1263. Unsatisfied with that result, the NCAA asks the Court to
find that all of its existing restraints on athlete compensation survive
antitrust scrutiny. The student-athletes have not renewed their
across-the-board challenge and the Court thus does not consider the
rules that remain in place. The Court considers only the subset of
NCAA rules restricting education-related benefits that the district
court enjoined. The Court does so based on the uncontested premise
that the NCAA enjoys monopsony control in the relevant market—
such that it is capable of depressing wages below competitive levels for
student-athletes and thereby restricting the quantity of student-athlete labor.
Held: The district court’s injunction is consistent with established antitrust principles. Pp. 15–36.
(a) The courts below properly subjected the NCAA’s compensation
restrictions to antitrust scrutiny under a “rule of reason” analysis. In
the Sherman Act, Congress tasked courts with enforcing an antitrust
policy of competition on the theory that market forces “yield the best
allocation” of the Nation’s resources. National Collegiate Athletic
Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 104, n. 27.
The Sherman Act’s prohibition on restraints of trade has long been understood to prohibit only restraints that are “undue.” Ohio v. American
Express Co., 585 U. S. ___, ___. Whether a particular restraint is undue “presumptively” turns on an application of a “rule of reason analysis.” Texaco, Inc. v. Dagher, 547 U. S. 1, 5. That manner of analysis
generally requires a court to “conduct a fact-specific assessment of
market power and market structure” to assess a challenged restraint’s
“actual effect on competition.” American Express, 585 U. S., at ___.
Pp. 15–24.
(1) The NCAA maintains the courts below should have analyzed
its compensation restrictions under an extremely deferential standard
because it is a joint venture among members who must collaborate to
offer consumers the unique product of intercollegiate athletic competition. Even assuming the NCAA is a joint venture, though, it is a joint
venture with monopoly power in the relevant market. Its restraints
are appropriately subject to the ordinary rule of reason’s fact-specific
assessment of their effect on competition. American Express, 585
U. S., at ___. Circumstances sometimes allow a court to determine the
anticompetitive effects of a challenged restraint (or lack thereof) under
an abbreviated or “quick look.” See Dagher, 547 U. S., at 7, n. 3; Board
of Regents, 468 U. S., at 109, n. 39. But not here. Pp. 15–19.
(2) The NCAA next contends that the Court’s decision in Board of
Cite as: 594 U. S. ____ (2021)
3
Syllabus
Regents expressly approved the NCAA’s limits on student-athlete compensation. That is incorrect. The Court in Board of Regents did not
analyze the lawfulness of the NCAA’s restrictions on student-athlete
compensation. Rather, that case involved an antitrust challenge to the
NCAA’s restraints on televising games—an antitrust challenge the
Court sustained. Along the way, the Court commented on the NCAA’s
critical role in maintaining the revered tradition of amateurism in college sports as one “entirely consistent with the goals of the Sherman
Act.” Id., at 120. But that sort of passing comment on an issue not
presented is not binding, nor is it dispositive here. Pp. 19–21.
(3) The NCAA also submits that a rule of reason analysis is inappropriate because its member schools are not “commercial enterprises”
but rather institutions that exist to further the societally important
noncommercial objective of undergraduate education. This submission
also fails. The Court has regularly refused these sorts of special dispensations from the Sherman Act. See FTC v. Superior Court Trial
Lawyers Assn., 493 U. S. 411, 424. The Court has also previously subjected the NCAA to the Sherman Act, and any argument that “the special characteristics of [the NCAA’s] particular industry” should exempt
it from the usual operation of the antitrust laws is “properly addressed
to Congress.” National Soc. of Professional Engineers v. United States,
435 U. S. 679, 689. Pp. 21–24.
(b) The NCAA’s remaining attacks on the district court’s decision
lack merit. Pp. 24–36.
(1) The NCAA contends that the district court erroneously required it to prove that its rules are the least restrictive means of
achieving the procompetitive purpose of preserving consumer demand
for college sports. True, a least restrictive means test would be erroneous and overly intrusive. But the district court nowhere expressly
or effectively required the NCAA to show that its rules met that standard. Rather, only after finding the NCAA’s restraints “patently and
inexplicably stricter than is necessary” did the district court find the
restraints unlawful. Pp. 24–29.
(2) The NCAA contends the district court should have deferred to
its conception of amateurism instead of “impermissibly redefin[ing]”
its “product.” But a party cannot declare a restraint “immune from §
1 scrutiny” by relabeling it a product feature. American Needle, Inc. v.
National Football League, 560 U. S. 183, 199, n. 7. Moreover, the district court found the NCAA had not even maintained a consistent definition of amateurism. Pp. 29–30.
(3) The NCAA disagrees that it can achieve the same pro-competitive benefits using substantially less restrictive alternatives and
claims the district court’s injunction will “micromanage” its business.
Judges must indeed be sensitive to the possibility that the “continuing
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Syllabus
supervision of a highly detailed decree” could wind up impairing rather
than enhancing competition. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 415. The district court’s
injunction honored these principles, though. The court enjoined only
certain restraints—and only after finding both that relaxing these restrictions would not blur the distinction between college and professional sports and thus impair demand, and further that this course
represented a significantly (not marginally) less restrictive means of
achieving the same procompetitive benefits as the NCAA’s current
rules. Finally, the court’s injunction preserves considerable leeway for
the NCAA, while individual conferences remain free to impose whatever rules they choose. To the extent the NCAA believes meaningful
ambiguity exists about the scope of its authority, it may seek clarification from the district court. Pp. 30–36.
958 F. 3d 1239, affirmed.
GORSUCH, J., delivered the opinion for a unanimous Court.
a concurring opinion.
VANAUGH, J., filed
KA-
Cite as: 594 U. S. ____ (2021)
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–512 and 20–520
_________________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
PETITIONER
20–512
v.
SHAWNE ALSTON, ET AL.
AMERICAN ATHLETIC CONFERENCE, ET AL.,
PETITIONERS
20–520
v.
SHAWNE ALSTON, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2021]
JUSTICE GORSUCH delivered the opinion of the Court.
In the Sherman Act, Congress tasked courts with enforcing a policy of competition on the belief that market forces
“yield the best allocation” of the Nation’s resources. National Collegiate Athletic Assn. v. Board of Regents of Univ.
of Okla., 468 U. S. 85, 104, n. 27 (1984). The plaintiffs before us brought this lawsuit alleging that the National Collegiate Athletic Association (NCAA) and certain of its member institutions violated this policy by agreeing to restrict
the compensation colleges and universities may offer the
student-athletes who play for their teams. After amassing
a vast record and conducting an exhaustive trial, the district court issued a 50-page opinion that cut both ways. The
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Opinion of the Court
court refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. At the same time, the court
struck down NCAA rules limiting the education-related
benefits schools may offer student-athletes—such as rules
that prohibit schools from offering graduate or vocational
school scholarships. Before us, the student-athletes do not
challenge the district court’s judgment. But the NCAA
does. In essence, it seeks immunity from the normal operation of the antitrust laws and argues, in any event, that
the district court should have approved all of its existing
restraints. We took this case to consider those objections.
I
A
From the start, American colleges and universities have
had a complicated relationship with sports and money. In
1852, students from Harvard and Yale participated in what
many regard as the Nation’s first intercollegiate competition—a boat race at Lake Winnipesaukee, New Hampshire.
But this was no pickup match. A railroad executive sponsored the event to promote train travel to the picturesque
lake. T. Mendenhall, The Harvard-Yale Boat Race 1852–
1924, pp. 15–16 (1993). He offered the competitors an allexpenses-paid vacation with lavish prizes—along with unlimited alcohol. See A. Zimbalist, Unpaid Professionals 6–
7 (1999) (Zimbalist); Rushin, Inside the Moat, Sports Illustrated, Mar. 3, 1997. The event filled the resort with “life
and excitement,” N. Y. Herald, Aug. 10, 1852, p. 2, col. 2,
and one student-athlete described the “ ‘junket’ ” as an experience “ ‘as unique and irreproducible as the Rhodian colossus,’ ” Mendenhall, Harvard-Yale Boat Race, at 20.
Life might be no “less than a boat race,” Holmes, On Receiving the Degree of Doctor of Laws, Yale University Commencement, June 30, 1886, in Speeches by Oliver Wendall
Holmes, p. 27 (1918), but it was football that really caused
Cite as: 594 U. S. ____ (2021)
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Opinion of the Court
college sports to take off. “By the late 1880s the traditional
rivalry between Princeton and Yale was attracting 40,000
spectators and generating in excess of $25,000 . . . in gate
revenues.” Zimbalist 7. Schools regularly had “graduate
students and paid ringers” on their teams. Ibid.
Colleges offered all manner of compensation to talented
athletes. Yale reportedly lured a tackle named James Hogan with free meals and tuition, a trip to Cuba, the exclusive right to sell scorecards from his games—and a job as a
cigarette agent for the American Tobacco Company. Ibid.;
see also Needham, The College Athlete, McClure’s Magazine, June 1905, p. 124. The absence of academic residency
requirements gave rise to “ ‘tramp athletes’ ” who “roamed
the country making cameo athletic appearances, moving on
whenever and wherever the money was better.” F. Dealy,
Win at Any Cost 71 (1990). One famous example was a law
student at West Virginia University—Fielding H. Yost—
“who, in 1896, transferred to Lafayette as a freshman just
in time to lead his new teammates to victory against its
arch-rival, Penn.” Ibid. The next week, he “was back at
West Virginia’s law school.” Ibid. College sports became
such a big business that Woodrow Wilson, then President
of Princeton University, quipped to alumni in 1890 that
“ ‘Princeton is noted in this wide world for three things: football, baseball, and collegiate instruction.’ ” Zimbalist 7.
By 1905, though, a crisis emerged. While college football
was hugely popular, it was extremely violent. Plays like the
flying wedge and the players’ light protective gear led to 7
football fatalities in 1893, 12 deaths the next year, and 18
in 1905. Id., at 8. President Theodore Roosevelt responded
by convening a meeting between Harvard, Princeton, and
Yale to review the rules of the game, a gathering that ultimately led to the creation of what we now know as the
NCAA. Ibid. Organized primarily as a standard-setting
body, the association also expressed a view at its founding
about compensating college athletes—admonishing that
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Opinion of the Court
“[n]o student shall represent a College or University in any
intercollegiate game or contest who is paid or receives, directly or indirectly, any money, or financial concession.” Intercollegiate Athletic Association of the United States Constitution By-Laws, Art. VII, §3 (1906); see also Proceedings
of the Eleventh Annual Convention of the National Collegiate Athletic Association, Dec. 28, 1916, p. 34.
Reality did not always match aspiration. More than two
decades later, the Carnegie Foundation produced a report
on college athletics that found them still “sodden with the
commercial and the material and the vested interests that
these forces have created.” H. Savage, The Carnegie Foundation for the Advancement of Teaching, American College
Athletics Bull. 23, p. 310 (1929). Schools across the country
sought to leverage sports to bring in revenue, attract attention, boost enrollment, and raise money from alumni. The
University of California’s athletic revenue was over
$480,000, while Harvard’s football revenue alone came in
at $429,000. Id., at 87. College football was “not a student’s
game”; it was an “organized commercial enterprise” featuring athletes with “years of training,” “professional coaches,”
and competitions that were “highly profitable.” Id., at viii.
The commercialism extended to the market for studentathletes. Seeking the best players, many schools actively
participated in a system “under which boys are offered pecuniary and other inducements to enter a particular college.” Id., at xiv–xv. One coach estimated that a rival team
“spent over $200,000 a year on players.” Zimbalist 9. In
1939, freshmen at the University of Pittsburgh went on
strike because upperclassmen were reportedly earning
more money. Crabb, The Amateurism Myth: A Case for a
New Tradition, 28 Stan. L. & Pol’y Rev. 181, 190 (2017). In
the 1940s, Hugh McElhenny, a halfback at the University
of Washington, “became known as the first college player
‘ever to take a cut in salary to play pro football.’ ” Zimbalist
22–23. He reportedly said: “ ‘[A] wealthy guy puts big
Cite as: 594 U. S. ____ (2021)
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Opinion of the Court
bucks under my pillow every time I score a touchdown.
Hell, I can’t afford to graduate.’ ” Id., at 211, n. 17. In 1946,
a commentator offered this view: “[W]hen it comes to chicanery, double-dealing, and general undercover work behind the scenes, big-time college football is in a class by itself.” Woodward, Is College Football on the Level?, Sport,
Nov. 1946, Vol. 1, No. 3, p. 35.
In 1948, the NCAA sought to do more than admonish. It
adopted the “Sanity Code.” Colleges Adopt the ‘Sanity
Code’ To Govern Sports, N. Y. Times, Jan. 11, 1948, p. 1,
col. 1. The code reiterated the NCAA’s opposition to “promised pay in any form.” Hearings before the Subcommittee
on Oversight and Investigations of the House Committee on
Interstate and Foreign Commerce, 95th Congress, 2d Sess.,
pt. 2, p. 1094 (1978). But for the first time the code also
authorized colleges and universities to pay athletes’ tuition.
Ibid. And it created a new enforcement mechanism—
providing for the “suspension or expulsion” of “proven offenders.” Colleges Adopt ‘Sanity Code,’ N. Y. Times, p. 1,
col. 1. To some, these changes sought to substitute a consistent, above-board compensation system for the varying
under-the-table schemes that had long proliferated. To others, the code marked “the beginning of the NCAA behaving
as an effective cartel,” by enabling its member schools to set
and enforce “rules that limit the price they have to pay for
their inputs (mainly the ‘student-athletes’).” Zimbalist 10.
The rules regarding student-athlete compensation have
evolved ever since. In 1956, the NCAA expanded the scope
of allowable payments to include room, board, books, fees,
and “cash for incidental expenses such as laundry.” In re
National Collegiate Athletic Assn. Athletic Grant-in-Aid
Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1063 (ND Cal.
2019) (hereinafter D. Ct. Op.). In 1974, the NCAA began
permitting paid professionals in one sport to compete on an
amateur basis in another. Brief for Historians as Amici Cu-
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Opinion of the Court
riae 10. In 2014, the NCAA “announced it would allow athletic conferences to authorize their member schools to increase scholarships up to the full cost of attendance.”
O’Bannon v. National Collegiate Athletic Assn., 802 F. 3d
1049, 1054–1055 (CA9 2015). The 80 member schools of the
“Power Five” athletic conferences—the conferences with
the highest revenue in Division I—promptly voted to raise
their scholarship limits to an amount that is generally several thousand dollars higher than previous limits. D. Ct.
Op., at 1064.
In recent years, changes have continued. The NCAA has
created the “Student Assistance Fund” and the “Academic
Enhancement Fund” to “assist student-athletes in meeting
financial needs,” “improve their welfare or academic support,” or “recognize academic achievement.” Id., at 1072.
These funds have supplied money to student-athletes for
“postgraduate scholarships” and “school supplies,” as well
as “benefits that are not related to education,” such as “lossof-value insurance premiums,” “travel expenses,” “clothing,” and “magazine subscriptions.” Id., at 1072, n. 15. In
2018, the NCAA made more than $84 million available
through the Student Activities Fund and more than $48
million available through the Academic Enhancement
Fund. Id., at 1072. Assistance may be provided in cash or
in kind, and there is no limit to the amount any particular
student-athlete may receive. Id., at 1073. Since 2015, disbursements to individual students have sometimes been
tens of thousands of dollars above the full cost of attendance. Ibid.
The NCAA has also allowed payments “ ‘incidental to athletics participation,’ ” including awards for “participation or
achievement in athletics” (like “qualifying for a bowl game”)
and certain “payments from outside entities” (such as for
“performance in the Olympics”). Id., at 1064, 1071, 1074.
The NCAA permits its member schools to award up to (but
no more than) two annual “Senior Scholar Awards” of
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Opinion of the Court
$10,000 for students to attend graduate school after their
athletic eligibility expires. Id., at 1074. Finally, the NCAA
allows schools to fund travel for student-athletes’ family
members to attend “certain events.” Id., at 1069.
Over the decades, the NCAA has become a sprawling enterprise. Its membership comprises about 1,100 colleges
and universities, organized into three divisions. Id., at
1063. Division I teams are often the most popular and attract the most money and the most talented athletes. Currently, Division I includes roughly 350 schools divided
across 32 conferences. See ibid. Within Division I, the most
popular sports are basketball and football. The NCAA divides Division I football into the Football Bowl Subdivision
(FBS) and the Football Championship Subdivision, with the
FBS generally featuring the best teams. Ibid. The 32 conferences in Division I function similarly to the NCAA itself,
but on a smaller scale. They “can and do enact their own
rules.” Id., at 1090.
At the center of this thicket of associations and rules sits
a massive business. The NCAA’s current broadcast contract for the March Madness basketball tournament is
worth $1.1 billion annually. See id., at 1077, n. 20. Its television deal for the FBS conference’s College Football
Playoff is worth approximately $470 million per year. See
id., at 1063; Bachman, ESPN Strikes Deal for College Football Playoff, Wall Street Journal, Nov. 21, 2012. Beyond
these sums, the Division I conferences earn substantial revenue from regular-season games. For example, the Southeastern Conference (SEC) “made more than $409 million in
revenues from television contracts alone in 2017, with its
total conference revenues exceeding $650 million that
year.” D. Ct. Op., at 1063. All these amounts have “increased consistently over the years.” Ibid.
Those who run this enterprise profit in a different way
than the student-athletes whose activities they oversee.
The president of the NCAA earns nearly $4 million per
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Opinion of the Court
year. Brief for Players Association of the National Football
League et al. as Amici Curiae 17. Commissioners of the top
conferences take home between $2 to $5 million. Ibid. College athletic directors average more than $1 million annually. Ibid. And annual salaries for top Division I college
football coaches approach $11 million, with some of their
assistants making more than $2.5 million. Id., at 17–18.
B
The plaintiffs are current and former student-athletes in
men’s Division I FBS football and men’s and women’s Division I basketball. They filed a class action against the
NCAA and 11 Division I conferences (for simplicity’s sake,
we refer to the defendants collectively as the NCAA). The
student-athletes challenged the “current, interconnected
set of NCAA rules that limit the compensation they may
receive in exchange for their athletic services.” D. Ct. Op.,
at 1062, 1065, n. 5. Specifically, they alleged that the
NCAA’s rules violate §1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.” 15 U. S. C. §1.
After pretrial proceedings stretching years, the district
court conducted a 10-day bench trial. It heard experts and
lay witnesses from both sides, and received volumes of evidence and briefing, all before issuing an exhaustive decision. In the end, the court found the evidence undisputed
on certain points. The NCAA did not “contest evidence
showing” that it and its members have agreed to compensation limits on student-athletes; the NCAA and its conferences enforce these limits by punishing violations; and
these limits “affect interstate commerce.” D. Ct. Op., at
1066.
Based on these premises, the district court proceeded to
assess the lawfulness of the NCAA’s challenged restraints.
This Court has “long recognized that in view of the common
law and the law in this country when the Sherman Act was
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Opinion of the Court
passed, the phrase ‘restraint of trade’ is best read to mean
‘undue restraint.’ ” Ohio v. American Express Co., 585 U. S.
___, ___ (2018) (slip op., at 8) (brackets and some internal
quotation marks omitted). Determining whether a restraint is undue for purposes of the Sherman Act “presumptively” calls for what we have described as a “rule of reason
analysis.” Texaco Inc. v. Dagher, 547 U. S. 1, 5 (2006);
Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 60–
62 (1911). That manner of analysis generally requires a
court to “conduct a fact-specific assessment of market power
and market structure” to assess a challenged restraint’s
“actual effect on competition.” American Express, 585 U. S.,
at ___–___ (slip op., at 8–9) (internal quotation marks omitted). Always, “[t]he goal is to distinguish between restraints with anticompetitive effect that are harmful to the
consumer and restraints stimulating competition that are
in the consumer’s best interest.” Ibid. (brackets and internal quotation marks omitted).
In applying the rule of reason, the district court began by
observing that the NCAA enjoys “near complete dominance
of, and exercise[s] monopsony power in, the relevant market”—which it defined as the market for “athletic services
in men’s and women’s Division I basketball and FBS football, wherein each class member participates in his or her
sport-specific market.” D. Ct. Op., at 1097. The “most talented athletes are concentrated” in the “markets for Division I basketball and FBS football.” Id., at 1067. There are
no “viable substitutes,” as the “NCAA’s Division I essentially is the relevant market for elite college football and
basketball.” Id., at 1067, 1070. In short, the NCAA and its
member schools have the “power to restrain student-athlete
compensation in any way and at any time they wish, without any meaningful risk of diminishing their market dominance.” Id., at 1070.
The district court then proceeded to find that the NCAA’s
compensation limits “produce significant anticompetitive
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Opinion of the Court
effects in the relevant market.” Id., at 1067. Though member schools compete fiercely in recruiting student-athletes,
the NCAA uses its monopsony power to “cap artificially the
compensation offered to recruits.” Id., at 1097. In a market
without the challenged restraints, the district court found,
“competition among schools would increase in terms of the
compensation they would offer to recruits, and studentathlete compensation would be higher as a result.” Id., at
1068. “Student-athletes would receive offers that would
more closely match the value of their athletic services.”
Ibid. And notably, the court observed, the NCAA “did not
meaningfully dispute” any of this evidence. Id., at 1067; see
also Tr. of Oral Arg. 31 (“[T]here’s no dispute that the—the
no-pay-for-play rule imposes a significant restraint on a relevant antitrust market”).
The district court next considered the NCAA’s procompetitive justifications for its restraints. The NCAA suggested
that its restrictions help increase output in college sports
and maintain a competitive balance among teams. But the
district court rejected those justifications, D. Ct. Op., at
1070, n. 12, and the NCAA does not pursue them here. The
NCAA’s only remaining defense was that its rules preserve
amateurism, which in turn widens consumer choice by
providing a unique product—amateur college sports as distinct from professional sports. Admittedly, this asserted
benefit accrues to consumers in the NCAA’s seller-side consumer market rather than to student-athletes whose compensation the NCAA fixes in its buyer-side labor market.
But, the NCAA argued, the district court needed to assess
its restraints in the labor market in light of their procompetitive benefits in the consumer market—and the district
court agreed to do so. Id., at 1098.
Turning to that task, the court observed that the NCAA’s
conception of amateurism has changed steadily over the
years. See id., at 1063–1064, 1072–1073; see also supra, at
3–7. The court noted that the NCAA “nowhere define[s] the
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11
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nature of the amateurism they claim consumers insist
upon.” D. Ct. Op., at 1070. And, given all this, the court
struggled to ascertain for itself “any coherent definition” of
the term, id., at 1074, noting the testimony of a former SEC
commissioner that he’s “ ‘never been clear on . . . what is really meant by amateurism.’ ” Id., at 1070–1071.
Nor did the district court find much evidence to support
the NCAA’s contention that its compensation restrictions
play a role in consumer demand. As the court put it, the
evidence failed “to establish that the challenged compensation rules, in and of themselves, have any direct connection
to consumer demand.” Id., at 1070. The court observed, for
example, that the NCAA’s “only economics expert on the issue of consumer demand” did not “study any standard
measures of consumer demand” but instead simply “interviewed people connected with the NCAA and its schools,
who were chosen for him by defense counsel.” Id., at 1075.
Meanwhile, the student-athletes presented expert testimony and other evidence showing that consumer demand
has increased markedly despite the new types of compensation the NCAA has allowed in recent decades. Id., at 1074,
1076. The plaintiffs presented economic and other evidence
suggesting as well that further increases in student-athlete
compensation would “not negatively affect consumer demand.” Id., at 1076. At the same time, however, the district
court did find that one particular aspect of the NCAA’s compensation limits “may have some effect in preserving consumer demand.” Id., at 1082. Specifically, the court found
that rules aimed at ensuring “student-athletes do not receive unlimited payments unrelated to education” could
play some role in product differentiation with professional
sports and thus help sustain consumer demand for college
athletics. Id., at 1083.
The court next required the student-athletes to show that
“substantially less restrictive alternative rules” existed
that “would achieve the same procompetitive effect as the
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Opinion of the Court
challenged set of rules.” Id., at 1104. The district court
emphasized that the NCAA must have “ample latitude” to
run its enterprise and that courts “may not use antitrust
laws to make marginal adjustments to broadly reasonable
market restraints.” Ibid. (internal quotation marks omitted). In light of these standards, the court found the
student-athletes had met their burden in some respects but
not others. The court rejected the student-athletes’ challenge to NCAA rules that limit athletic scholarships to the
full cost of attendance and that restrict compensation and
benefits unrelated to education. These may be price-fixing
agreements, but the court found them to be reasonable in
light of the possibility that “professional-level cash payments . . . could blur the distinction between college sports
and professional sports and thereby negatively affect consumer demand.” Ibid.
The court reached a different conclusion for caps on
education-related benefits—such as rules that limit scholarships for graduate or vocational school, payments for academic tutoring, or paid posteligibility internships. Id., at
1088. On no account, the court found, could such educationrelated benefits be “confused with a professional athlete’s
salary.” Id., at 1083. If anything, they “emphasize that the
recipients are students.” Ibid. Enjoining the NCAA’s restrictions on these forms of compensation alone, the court
concluded, would be substantially less restrictive than the
NCAA’s current rules and yet fully capable of preserving
consumer demand for college sports. Id., at 1088.
The court then entered an injunction reflecting its findings and conclusions. Nothing in the order precluded the
NCAA from continuing to fix compensation and benefits unrelated to education; limits on athletic scholarships, for example, remained untouched. The court enjoined the NCAA
only from limiting education-related compensation or benefits that conferences and schools may provide to studentathletes playing Division I football and basketball. App. to
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Pet. for Cert. in No. 20–512, p. 167a, ¶1. The court’s injunction further specified that the NCAA could continue to limit
cash awards for academic achievement—but only so long as
those limits are no lower than the cash awards allowed for
athletic achievement (currently $5,980 annually). Id., at
168a–169a, ¶5; Order Granting Motion for Clarification of
Injunction in No. 4:14–md–02541, ECF Doc. 1329, pp. 5–6
(ND Cal., Dec. 30, 2020). The court added that the NCAA
and its members were free to propose a definition of compensation or benefits “ ‘related to education.’ ” App. to Pet.
for Cert. in No. 20–512, at 168a, ¶4. And the court explained that the NCAA was free to regulate how conferences and schools provide education-related compensation
and benefits. Ibid. The court further emphasized that its
injunction applied only to the NCAA and multi-conference
agreements—thus allowing individual conferences (and the
schools that constitute them) to impose tighter restrictions
if they wish. Id., at 169a, ¶6. The district court’s injunction
issued in March 2019, and took effect in August 2020.
Both sides appealed. The student-athletes said the district court did not go far enough; it should have enjoined all
of the NCAA’s challenged compensation limits, including
those “untethered to education,” like its restrictions on the
size of athletic scholarships and cash awards. In re National Collegiate Athletic Assn. Athletic Grant-in-Aid Cap
Antitrust Litig., 958 F. 3d 1239, 1263 (CA9 2020). The
NCAA, meanwhile, argued that the district court went too
far by weakening its restraints on education-related compensation and benefits. In the end, the court of appeals affirmed in full, explaining its view that “the district court
struck the right balance in crafting a remedy that both prevents anticompetitive harm to Student-Athletes while serving the procompetitive purpose of preserving the popularity
of college sports.” Ibid.
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Opinion of the Court
C
Unsatisfied with this result, the NCAA asks us to reverse
to the extent the lower courts sided with the studentathletes. For their part, the student-athletes do not renew
their across-the-board challenge to the NCAA’s compensation restrictions. Accordingly, we do not pass on the rules
that remain in place or the district court’s judgment upholding them. Our review is confined to those restrictions now
enjoined.
Before us, as through much of the litigation below, some
of the issues most frequently debated in antitrust litigation
are uncontested. The parties do not challenge the district
court’s definition of the relevant market. They do not contest that the NCAA enjoys monopoly (or, as it’s called on the
buyer side, monopsony) control in that labor market—such
that it is capable of depressing wages below competitive levels and restricting the quantity of student-athlete labor.
Nor does the NCAA dispute that its member schools compete fiercely for student-athletes but remain subject to
NCAA-issued-and-enforced limits on what compensation
they can offer. Put simply, this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.
Other significant matters are taken as given here too. No
one disputes that the NCAA’s restrictions in fact decrease
the compensation that student-athletes receive compared
to what a competitive market would yield. No one questions
either that decreases in compensation also depress participation by student-athletes in the relevant labor market—
so that price and quantity are both suppressed. See 12 P.
Areeda & H. Hovenkamp, Antitrust Law ¶2011b, p. 134
(4th ed. 2019) (Areeda & Hovenkamp). Nor does the NCAA
suggest that, to prevail, the plaintiff student-athletes must
show that its restraints harm competition in the seller-side
(or consumer facing) market as well as in its buyer-side (or
labor) market. See, e.g., Mandeville Island Farms, Inc. v.
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American Crystal Sugar Co., 334 U. S. 219, 235 (1948);
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.,
549 U. S. 312, 321 (2007); 2A Areeda & Hovenkamp ¶352c,
pp. 288–289 (2014); 12 id., ¶2011a, at 132–134.
Meanwhile, the student-athletes do not question that the
NCAA may permissibly seek to justify its restraints in the
labor market by pointing to procompetitive effects they produce in the consumer market. Some amici argue that “competition in input markets is incommensurable with competition in output markets,” and that a court should not “trade
off ” sacrificing a legally cognizable interest in competition
in one market to better promote competition in a different
one; review should instead be limited to the particular market in which antitrust plaintiffs have asserted their injury.
Brief for American Antitrust Institute as Amicus Curiae 3,
11–12. But the parties before us do not pursue this line.
II
A
With all these matters taken as given, we express no
views on them. Instead, we focus only on the objections the
NCAA does raise. Principally, it suggests that the lower
courts erred by subjecting its compensation restrictions to
a rule of reason analysis. In the NCAA’s view, the courts
should have given its restrictions at most an “abbreviated
deferential review,” Brief for Petitioner in No. 20–512,
p. 14, or a “ ‘quick look,’ ” Brief for Petitioners in No. 20–520,
p. 18, before approving them.
The NCAA offers a few reasons why. Perhaps dominantly, it argues that it is a joint venture and that collaboration among its members is necessary if they are to offer
consumers the benefit of intercollegiate athletic competition. We doubt little of this. There’s no question, for example, that many “joint ventures are calculated to enable firms
to do something more cheaply or better than they did it before.” 13 Areeda & Hovenkamp ¶2100c, at 7. And the fact
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Opinion of the Court
that joint ventures can have such procompetitive benefits
surely stands as a caution against condemning their arrangements too reflexively. See Dagher, 547 U. S., at 7;
Broadcast Music, Inc. v. Columbia Broadcasting System,
Inc., 441 U. S. 1, 22–23 (1979).
But even assuming (without deciding) that the NCAA is
a joint venture, that does not guarantee the foreshortened
review it seeks. Most restraints challenged under the Sherman Act—including most joint venture restrictions—are
subject to the rule of reason, which (again) we have described as “a fact-specific assessment of market power and
market structure” aimed at assessing the challenged restraint’s “actual effect on competition”—especially its capacity to reduce output and increase price. American Express, 585 U. S., at ___–___ (slip op., at 8–9) (internal
quotation marks omitted).
Admittedly, the amount of work needed to conduct a fair
assessment of these questions can vary. As the NCAA observes, this Court has suggested that sometimes we can determine the competitive effects of a challenged restraint in
the “ ‘twinkling of an eye.’ ” Board of Regents, 468 U. S., at
110, n. 39 (quoting P. Areeda, The “Rule of Reason” in Antitrust Analysis: General Issues 37–38 (Federal Judicial
Center, June 1981)); American Needle, Inc. v. National
Football League, 560 U. S. 183, 203 (2010). That is true,
though, only for restraints at opposite ends of the competitive spectrum. For those sorts of restraints—rather than
restraints in the great in-between—a quick look is sufficient for approval or condemnation.
At one end of the spectrum, some restraints may be so
obviously incapable of harming competition that they require little scrutiny. In Rothery Storage & Van Co. v. Atlas
Van Lines, Inc., 792 F. 2d 210 (CADC 1986), for example,
Judge Bork explained that the analysis could begin and end
with the observation that the joint venture under review
“command[ed] between 5.1 and 6% of the relevant market.”
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Id., at 217. Usually, joint ventures enjoying such small
market share are incapable of impairing competition.
Should they reduce their output, “there would be no effect
upon market price because firms making up the other 94%
of the market would simply take over the abandoned business.” Ibid.; see also 7 Areeda & Hovenkamp ¶1507a,
p. 444 (2017) (If “the exercise of market power is not plausible, the challenged practice is legal”); Polk Bros., Inc. v.
Forest City Enterprises, Inc., 776 F. 2d 185, 191 (CA7 1985)
(“Unless the firms have the power to raise price by curtailing output, their agreement is unlikely to harm consumers,
and it makes sense to understand their cooperation as benign or beneficial”).
At the other end, some agreements among competitors so
obviously threaten to reduce output and raise prices that
they might be condemned as unlawful per se or rejected after only a quick look. See Dagher, 547 U. S., at 7, n. 3; California Dental Assn. v. FTC, 526 U. S. 756, 770 (1999). Recognizing the inherent limits on a court’s ability to master
an entire industry—and aware that there are often hard-tosee efficiencies attendant to complex business arrangements—we take special care not to deploy these condemnatory tools until we have amassed “considerable experience
with the type of restraint at issue” and “can predict with
confidence that it would be invalidated in all or almost all
instances.” Leegin Creative Leather Products, Inc. v. PSKS,
Inc., 551 U. S. 877, 886–887 (2007); Easterbrook, On Identifying Exclusionary Conduct, 61 Notre Dame L. Rev. 972,
975 (1986) (noting that it can take “economists years, sometimes decades, to understand why certain business practices work [and] determine whether they work because of
increased efficiency or exclusion”); see also infra, at 26–27
(further reasons for caution).
None of this helps the NCAA. The NCAA accepts that its
members collectively enjoy monopsony power in the market
for student-athlete services, such that its restraints can
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Opinion of the Court
(and in fact do) harm competition. See D. Ct. Op., at 1067.
Unlike customers who would look elsewhere when a small
van company raises its prices above market levels, the district court found (and the NCAA does not here contest) that
student-athletes have nowhere else to sell their labor. Even
if the NCAA is a joint venture, then, it is hardly of the sort
that would warrant quick-look approval for all its myriad
rules and restrictions.
Nor does the NCAA’s status as a particular type of venture categorically exempt its restraints from ordinary rule
of reason review. We do not doubt that some degree of coordination between competitors within sports leagues can
be procompetitive. Without some agreement among rivals—on things like how many players may be on the field
or the time allotted for play—the very competitions that
consumers value would not be possible. See Board of Regents, 468 U. S., at 101 (quoting R. Bork, The Antitrust Paradox 278 (1978)). Accordingly, even a sports league with
market power might see some agreements among its members win antitrust approval in the “ ‘twinkling of an eye.’ ”
American Needle, 560 U. S., at 203.
But this insight does not always apply. That some restraints are necessary to create or maintain a league sport
does not mean all “aspects of elaborate interleague cooperation are.” Id., at 199, n. 7. While a quick look will often
be enough to approve the restraints “necessary to produce
a game,” ibid., a fuller review may be appropriate for others. See, e.g., Chicago Professional Sports Ltd. Partnership
v. National Basketball Assn., 95 F. 3d 593, 600 (CA7 1996)
(“Just as the ability of McDonald’s franchises to coordinate
the release of a new hamburger does not imply their ability
to agree on wages for counter workers, so the ability of
sports teams to agree on a TV contract need not imply an
ability to set wages for players”).
The NCAA’s rules fixing wages for student-athletes fall
on the far side of this line. Nobody questions that Division
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I basketball and FBS football can proceed (and have proceeded) without the education-related compensation restrictions the district court enjoined; the games go on. Instead, the parties dispute whether and to what extent those
restrictions in the NCAA’s labor market yield benefits in its
consumer market that can be attained using substantially
less restrictive means. That dispute presents complex
questions requiring more than a blink to answer.
B
Even if background antitrust principles counsel in favor
of the rule of reason, the NCAA replies that a particular
precedent ties our hands. The NCAA directs our attention
to Board of Regents, where this Court considered the
league’s rules restricting the ability of its member schools
to televise football games. 468 U. S., at 94. On the NCAA’s
reading, that decision expressly approved its limits on student-athlete compensation—and this approval forecloses
any meaningful review of those limits today.
We see things differently. Board of Regents explained
that the league’s television rules amounted to “[h]orizontal
price fixing and output limitation[s]” of the sort that are
“ordinarily condemned” as “ ‘illegal per se.’ ” Id., at 100. The
Court declined to declare the NCAA’s restraints per se unlawful only because they arose in “an industry” in which
some “horizontal restraints on competition are essential if
the product is to be available at all.” Id., at 101–102. Our
analysis today is fully consistent with all of this. Indeed, if
any daylight exists it is only in the NCAA’s favor. While
Board of Regents did not condemn the NCAA’s broadcasting
restraints as per se unlawful, it invoked abbreviated antitrust review as a path to condemnation, not salvation. Id.,
at 109, n. 39. If a quick look was thought sufficient before
rejecting the NCAA’s procompetitive rationales in that
case, it is hard to see how the NCAA might object to a court
providing a more cautious form of review before reaching a
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Opinion of the Court
similar judgment here.
To be sure, the NCAA isn’t without a reply. It notes that,
in the course of reaching its judgment about television marketing restrictions, the Board of Regents Court commented
on student-athlete compensation restrictions. Most particularly, the NCAA highlights this passage:
“The NCAA plays a critical role in the maintenance of
a revered tradition of amateurism in college sports.
There can be no question but that it needs ample latitude to play that role, or that the preservation of the
student-athlete in higher education adds richness and
diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.” Id., at 120.
See also id., at 101, 102 (the NCAA “seeks to market a particular brand of football” in which “athletes must not be
paid, must be required to attend class, and the like”). On
the NCAA’s telling, these observations foreclose any rule of
reason review in this suit.
Once more, we cannot agree. Board of Regents may suggest that courts should take care when assessing the
NCAA’s restraints on student-athlete compensation, sensitive to their procompetitive possibilities. But these remarks do not suggest that courts must reflexively reject all
challenges to the NCAA’s compensation restrictions. Student-athlete compensation rules were not even at issue in
Board of Regents. And the Court made clear it was only
assuming the reasonableness of the NCAA’s restrictions:
“It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and are therefore
procompetitive . . . .” Id., at 117 (emphasis added). Accordingly, the Court simply did not have occasion to declare—
nor did it declare—the NCAA’s compensation restrictions
procompetitive both in 1984 and forevermore.
Our confidence on this score is fortified by still another
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factor. Whether an antitrust violation exists necessarily
depends on a careful analysis of market realities. See, e.g.,
American Express Co., 585 U. S., at ___–___ (slip op., at 10–
12); 2B Areeda & Hovenkamp ¶500, p. 107 (2014). If those
market realities change, so may the legal analysis.
When it comes to college sports, there can be little doubt
that the market realities have changed significantly since
1984. Since then, the NCAA has dramatically increased the
amounts and kinds of benefits schools may provide to student-athletes. For example, it has allowed the conferences
flexibility to set new and higher limits on athletic scholarships. D. Ct. Op., at 1064. It has increased the size of permissible benefits “incidental to athletics participation.” Id.,
at 1066. And it has developed the Student Assistance Fund
and the Academic Enhancement Fund, which in 2018 alone
provided over $100 million to student-athletes. Id., at 1072.
Nor is that all that has changed. In 1985, Division I football
and basketball raised approximately $922 million and $41
million respectively. Brief for Former NCAA Executives as
Amici Curiae 7. By 2016, NCAA Division I schools raised
more than $13.5 billion. Ibid. From 1982 to 1984, CBS paid
$16 million per year to televise the March Madness Division
I men’s basketball tournament. Ibid. In 2016, those annual
television rights brought in closer to $1.1 billion. D. Ct. Op.,
at 1077, n. 20.
Given the sensitivity of antitrust analysis to market realities—and how much has changed in this market—we
think it would be particularly unwise to treat an aside in
Board of Regents as more than that. This Court may be
“infallible only because we are final,” Brown v. Allen, 344
U. S. 443, 540 (1953) (Jackson, J., concurring in result), but
those sorts of stray comments are neither.
C
The NCAA submits that a rule of reason analysis is inappropriate for still another reason—because the NCAA and
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Opinion of the Court
its member schools are not “commercial enterprises” and
instead oversee intercollegiate athletics “as an integral part
of the undergraduate experience.” Brief for Petitioner in
No. 20–512, at 31. The NCAA represents that it seeks to
“maintain amateurism in college sports as part of serving
[the] societally important non-commercial objective” of
“higher education.” Id., at 3.
Here again, however, there may be less of a dispute than
meets the eye. The NCAA does not contest that its restraints affect interstate trade and commerce and are thus
subject to the Sherman Act. See D. Ct. Op., at 1066. The
NCAA acknowledges that this Court already analyzed (and
struck down) some of its restraints as anticompetitive in
Board of Regents. And it admits, as it must, that the Court
did all this only after observing that the Sherman Act had
already been applied to other nonprofit organizations—and
that “the economic significance of the NCAA’s nonprofit
character is questionable at best” given that “the NCAA and
its member institutions are in fact organized to maximize
revenues.” 468 U. S., at 100–101, n. 22. Nor, on the other
side of the equation, does anyone contest that the status of
the NCAA’s members as schools and the status of studentathletes as students may be relevant in assessing consumer
demand as part of a rule of reason review.
With this much agreed it is unclear exactly what the
NCAA seeks. To the extent it means to propose a sort of
judicially ordained immunity from the terms of the Sherman Act for its restraints of trade—that we should overlook
its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot
agree. This Court has regularly refused materially identical requests from litigants seeking special dispensation
from the Sherman Act on the ground that their restraints
of trade serve uniquely important social objectives beyond
enhancing competition.
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Take two examples. In National Soc. of Professional Engineers v. United States, 435 U. S. 679 (1978), a trade association argued that price competition between engineers
competing for building projects had to be restrained to ensure quality work and protect public safety. Id., at 679–
680. This Court rejected that appeal as “nothing less than
a frontal assault on the basic policy of the Sherman Act.”
Id., at 695. The “statutory policy” of the Act is one of competition and it “precludes inquiry into the question whether
competition is good or bad.” Ibid. In FTC v. Superior Court
Trial Lawyers Assn., 493 U. S. 411 (1990), criminal defense
lawyers agreed among themselves to refuse court appointments until the government increased their compensation.
Id., at 414. And once more the Court refused to consider
whether this restraint of trade served some social good
more important than competition: “The social justifications
proffered for respondents’ restraint of trade . . . do not make
it any less unlawful.” Id., at 424.
To be sure, this Court once dallied with something that
looks a bit like an antitrust exemption for professional baseball. In Federal Baseball Club of Baltimore, Inc. v. National
League of Professional Baseball Clubs, 259 U. S. 200 (1922),
the Court reasoned that “exhibitions” of “base ball” did not
implicate the Sherman Act because they did not involve interstate trade or commerce—even though teams regularly
crossed state lines (as they do today) to make money and
enhance their commercial success. Id., at 208–209. But
this Court has refused to extend Federal Baseball’s reasoning to other sports leagues—and has even acknowledged
criticisms of the decision as “ ‘unrealistic’ ” and “ ‘inconsistent’ ” and “aberration[al].” Flood v. Kuhn, 407 U. S. 258,
282 (1972) (quoting Radovich v. National Football League,
352 U. S. 445, 452 (1957)); see also Brief for Advocates for
Minor Leaguers as Amicus Curiae 5, n. 3 (gathering criticisms). Indeed, as we have seen, this Court has already
recognized that the NCAA itself is subject to the Sherman
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Opinion of the Court
Act.
The “orderly way” to temper that Act’s policy of competition is “by legislation and not by court decision.” Flood, 407
U. S., at 279. The NCAA is free to argue that, “because of
the special characteristics of [its] particular industry,” it
should be exempt from the usual operation of the antitrust
laws—but that appeal is “properly addressed to Congress.”
National Soc. of Professional Engineers, 435 U. S., at 689.
Nor has Congress been insensitive to such requests. It has
modified the antitrust laws for certain industries in the
past, and it may do so again in the future. See, e.g., 7
U. S. C. §§291–292 (agricultural cooperatives); 15 U. S. C.
§§1011–1013 (insurance); 15 U. S. C. §§1801–1804 (newspaper joint operating agreements). But until Congress says
otherwise, the only law it has asked us to enforce is the
Sherman Act, and that law is predicated on one assumption
alone—“competition is the best method of allocating resources” in the Nation’s economy. National Soc. of Professional Engineers, 435 U. S., at 695.
III
A
While the NCAA devotes most of its energy to resisting
the rule of reason in its usual form, the league lodges some
objections to the district court’s application of it as well.
When describing the rule of reason, this Court has sometimes spoken of “a three-step, burden-shifting framework”
as a means for “ ‘distinguish[ing] between restraints with
anticompetitive effect that are harmful to the consumer and
restraints stimulating competition that are in the consumer’s best interest.’ ” American Express Co., 585 U. S., at
___ (slip op., at 9). As we have described it, “the plaintiff
has the initial burden to prove that the challenged restraint
has a substantial anticompetitive effect.” Ibid. Should the
plaintiff carry that burden, the burden then “shifts to the
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defendant to show a procompetitive rationale for the restraint.” Ibid. If the defendant can make that showing,
“the burden shifts back to the plaintiff to demonstrate that
the procompetitive efficiencies could be reasonably
achieved through less anticompetitive means.” Id., at ___–
___ (slip op., at 9–10).
These three steps do not represent a rote checklist, nor
may they be employed as an inflexible substitute for careful
analysis. As we have seen, what is required to assess
whether a challenged restraint harms competition can vary
depending on the circumstances. See supra, at 15–19. The
whole point of the rule of reason is to furnish “an enquiry
meet for the case, looking to the circumstances, details, and
logic of a restraint” to ensure that it unduly harms competition before a court declares it unlawful. California Dental,
526 U. S., at 781; see also, e.g., Leegin Creative, 551 U. S.,
at 885 (“ ‘[T]he factfinder weighs all of the circumstances of
a case in deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on competition’ ”); Copperweld Corp. v. Independence Tube Corp.,
467 U. S. 752, 768 (1984); 7 Areeda & Hovenkamp ¶1507a,
at 442–444 (slightly different “decisional model” using sequential questions).
In the proceedings below, the district court followed circuit precedent to apply a multistep framework closely akin
to American Express’s. As its first step, the district court
required the student-athletes to show that “the challenged
restraints produce significant anticompetitive effects in the
relevant market.” D. Ct. Op., at 1067. This was no slight
burden. According to one amicus, courts have disposed of
nearly all rule of reason cases in the last 45 years on the
ground that the plaintiff failed to show a substantial anticompetitive effect. Brief for 65 Professors of Law, Business,
Economics, and Sports Management as Amici Curiae 21,
n. 9 (“Since 1977, courts decided 90% (809 of 897) on this
ground”). This suit proved different. As we have seen,
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Opinion of the Court
based on a voluminous record, the district court held that
the student-athletes had shown the NCAA enjoys the power
to set wages in the market for student-athletes’ labor—and
that the NCAA has exercised that power in ways that have
produced significant anticompetitive effects. See D. Ct. Op.,
at 1067. Perhaps even more notably, the NCAA “did not
meaningfully dispute” this conclusion. Ibid.
Unlike so many cases, then, the district court proceeded
to the second step, asking whether the NCAA could muster
a procompetitive rationale for its restraints. Id., at 1070.
This is where the NCAA claims error first crept in. On its
account, the district court examined the challenged rules at
different levels of generality. At the first step of its inquiry,
the court asked whether the NCAA’s entire package of compensation restrictions has substantial anticompetitive effects collectively. Yet, at the second step, the NCAA says
the district court required it to show that each of its distinct
rules limiting student-athlete compensation has procompetitive benefits individually. The NCAA says this mismatch had the result of effectively—and erroneously—requiring it to prove that each rule is the least restrictive
means of achieving the procompetitive purpose of differentiating college sports and preserving demand for them.
We agree with the NCAA’s premise that antitrust law
does not require businesses to use anything like the least
restrictive means of achieving legitimate business purposes. To the contrary, courts should not second-guess “degrees of reasonable necessity” so that “the lawfulness of conduct turn[s] upon judgments of degrees of efficiency.”
Rothery Storage, 792 F. 2d, at 227; Continental T. V., Inc. v.
GTE Sylvania Inc., 433 U. S. 36, 58, n. 29 (1977). That
would be a recipe for disaster, for a “skilled lawyer” will
“have little difficulty imagining possible less restrictive alternatives to most joint arrangements.” 11 Areeda &
Hovenkamp ¶1913b, p. 398 (2018). And judicial acceptance
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of such imaginings would risk interfering “with the legitimate objectives at issue” without “adding that much to competition.” 7 id., ¶1505b, at 435–436.
Even worse, “[r]ules that seek to embody every economic
complexity and qualification may well, through the vagaries of administration, prove counter-productive, undercutting the very economic ends they seek to serve.” Barry
Wright Corp. v. ITT Grinnell Corp., 724 F. 2d 227, 234 (CA1
1983) (BREYER, J.). After all, even “[u]nder the best of circumstances,” applying the antitrust laws “ ‘can be difficult’ ”—and mistaken condemnations of legitimate business
arrangements “ ‘are especially costly, because they chill the
very’ ” procompetitive conduct “ ‘the antitrust laws are designed to protect.’ ” Verizon Communications Inc. v. Law
Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 414 (2004).
Indeed, static judicial decrees in ever-evolving markets may
themselves facilitate collusion or frustrate entry and competition. Ibid. To know that the Sherman Act prohibits
only unreasonable restraints of trade is thus to know that
attempts to “ ‘[m]ete[r]’ small deviations is not an appropriate antitrust function.” Hovenkamp, Antitrust Balancing,
12 N. Y. U. J. L. & Bus. 369, 377 (2016).
While we agree with the NCAA’s legal premise, we cannot say the same for its factual one. Yes, at the first step of
its inquiry, the district court held that the student-athletes
had met their burden of showing the NCAA’s restraints collectively bear an anticompetitive effect. And, given that,
yes, at step two the NCAA had to show only that those same
rules collectively yield a procompetitive benefit. The trouble for the NCAA, though, is not the level of generality. It
is the fact that the district court found unpersuasive much
of its proffered evidence. See D. Ct. Op., at 1070–1076,
1080–1083. Recall that the court found the NCAA failed “to
establish that the challenged compensation rules . . . have
any direct connection to consumer demand.” Id., at 1070.
To be sure, there is a wrinkle here. While finding the
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NATIONAL COLLEGIATE ATHLETIC ASSN. v. ALSTON
Opinion of the Court
NCAA had failed to establish that its rules collectively sustain consumer demand, the court did find that “some” of
those rules “may” have procompetitive effects “to the extent” they prohibit compensation “unrelated to education,
akin to salaries seen in professional sports leagues.” Id., at
1082–1083. The court then proceeded to what corresponds
to the third step of the American Express framework, where
it required the student-athletes “to show that there are substantially less restrictive alternative rules that would
achieve the same procompetitive effect as the challenged
set of rules.” D. Ct. Op., at 1104. And there, of course, the
district court held that the student-athletes partially succeeded—they were able to show that the NCAA could
achieve the procompetitive benefits it had established with
substantially less restrictive restraints on education-related benefits.
Even acknowledging this wrinkle, we see nothing about
the district court’s analysis that offends the legal principles
the NCAA invokes. The court’s judgment ultimately turned
on the key question at the third step: whether the studentathletes could prove that “substantially less restrictive alternative rules” existed to achieve the same procompetitive
benefits the NCAA had proven at the second step. Ibid. Of
course, deficiencies in the NCAA’s proof of procompetitive
benefits at the second step influenced the analysis at the
third. But that is only because, however framed and at
whichever step, anticompetitive restraints of trade may
wind up flunking the rule of reason to the extent the evidence shows that substantially less restrictive means exist
to achieve any proven procompetitive benefits. See, e.g., 7
Areeda & Hovenkamp ¶1505, p. 428 (“To be sure, these two
questions can be collapsed into one,” since a “legitimate objective that is not promoted by the challenged restraint can
be equally served by simply abandoning the restraint,
which is surely a less restrictive alternative”).
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Opinion of the Court
Simply put, the district court nowhere—expressly or effectively—required the NCAA to show that its rules constituted the least restrictive means of preserving consumer demand. Rather, it was only after finding the NCAA’s
restraints “ ‘patently and inexplicably stricter than is necessary’ ” to achieve the procompetitive benefits the league
had demonstrated that the district court proceeded to declare a violation of the Sherman Act. D. Ct. Op., at 1104.
That demanding standard hardly presages a future filled
with judicial micromanagement of legitimate business decisions.
B
In a related critique, the NCAA contends the district
court “impermissibly redefined” its “product” by rejecting
its views about what amateurism requires and replacing
them with its preferred conception. Brief for Petitioner in
No. 20–512, at 35–36.
This argument, however, misapprehends the way a defendant’s procompetitive business justification relates to
the antitrust laws. Firms deserve substantial latitude to
fashion agreements that serve legitimate business interests—agreements that may include efforts aimed at introducing a new product into the marketplace. Supra, at 15–
19. But none of that means a party can relabel a restraint
as a product feature and declare it “immune from §1 scrutiny.” American Needle, 560 U. S., at 199, n. 7. In this suit,
as in any, the district court had to determine whether the
defendants’ agreements harmed competition and whether
any procompetitive benefits associated with their restraints
could be achieved by “substantially less restrictive alternative” means. D. Ct. Op., at 1104.
The NCAA’s argument not only misapprehends the inquiry, it would require us to overturn the district court’s
factual findings. While the NCAA asks us to defer to its
conception of amateurism, the district court found that the
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Opinion of the Court
NCAA had not adopted any consistent definition. Id., at
1070. Instead, the court found, the NCAA’s rules and restrictions on compensation have shifted markedly over
time. Id., at 1071–1074. The court found, too, that the
NCAA adopted these restrictions without any reference to
“considerations of consumer demand,” id., at 1100, and that
some were “not necessary to preserve consumer demand,”
id., at 1075, 1080, 1104. None of this is product redesign; it
is a straightforward application of the rule of reason.
C
Finally, the NCAA attacks as “indefensible” the lower
courts’ holding that substantially less restrictive alternatives exist capable of delivering the same procompetitive
benefits as its current rules. Brief for Petitioner in No. 20–
512, at 46. The NCAA claims, too, that the district court’s
injunction threatens to “micromanage” its business. Id., at
50.
Once more, we broadly agree with the legal principles the
NCAA invokes. As we have discussed, antitrust courts
must give wide berth to business judgments before finding
liability. See supra, at 15–19. Similar considerations apply
when it comes to the remedy. Judges must be sensitive to
the possibility that the “continuing supervision of a highly
detailed decree” could wind up impairing rather than enhancing competition. Trinko, 540 U. S., at 415. Costs associated with ensuring compliance with judicial decrees may
exceed efficiencies gained; the decrees themselves may unintentionally suppress procompetitive innovation and even
facilitate collusion. See supra, at 26–27. Judges must be
wary, too, of the temptation to specify “the proper price,
quantity, and other terms of dealing”—cognizant that they
are neither economic nor industry experts. Trinko, 540
U. S., at 408. Judges must be open to reconsideration and
modification of decrees in light of changing market reali-
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ties, for “what we see may vary over time.” California Dental, 526 U. S., at 781. And throughout courts must have a
healthy respect for the practical limits of judicial administration: “An antitrust court is unlikely to be an effective
day-to-day enforcer” of a detailed decree, able to keep pace
with changing market dynamics alongside a busy docket.
Trinko, 540 U. S., at 415. Nor should any court “ ‘impose a
duty . . . that it cannot explain or adequately and reasonably supervise.’ ” Ibid. In short, judges make for poor “central planners” and should never aspire to the role. Id., at
408.
Once again, though, we think the district court honored
these principles. The court enjoined only restraints on education-related benefits—such as those limiting scholarships for graduate school, payments for tutoring, and the
like. The court did so, moreover, only after finding that relaxing these restrictions would not blur the distinction between college and professional sports and thus impair demand—and only after finding that this course represented
a significantly (not marginally) less restrictive means of
achieving the same procompetitive benefits as the NCAA’s
current rules. D. Ct. Op., at 1104–1105.
Even with respect to education-related benefits, the district court extended the NCAA considerable leeway. As we
have seen, the court provided that the NCAA could develop
its own definition of benefits that relate to education and
seek modification of the court’s injunction to reflect that
definition. App. to Pet. for Cert. in No. 20–512, at 168a, ¶4.
The court explained that the NCAA and its members could
agree on rules regulating how conferences and schools go
about providing these education-related benefits. Ibid. The
court said that the NCAA and its members could continue
fixing education-related cash awards, too—so long as those
“limits are never lower than the limit” on awards for athletic performance. D. Ct. Op., at 1104; App. to Pet. for Cert.
in No. 20–512, at 168a–169a, ¶5. And the court emphasized
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Opinion of the Court
that its injunction applies only to the NCAA and multiconference agreements; individual conferences remain free to
reimpose every single enjoined restraint tomorrow—or
more restrictive ones still. Id., at 169a–170a, ¶¶6–7.
In the end, it turns out that the NCAA’s complaints really
boil down to three principal objections.
First, the NCAA worries about the district court’s inclusion of paid posteligibility internships among the education-related benefits it approved. The NCAA fears that
schools will use internships as a way of circumventing limits on payments that student-athletes may receive for athletic performance. The NCAA even imagines that boosters
might promise posteligibility internships “at a sneaker
company or auto dealership” with extravagant salaries as a
“thinly disguised vehicle” for paying professional-level salaries. Brief for Petitioner in No. 20–512, at 37–38.
This argument rests on an overly broad reading of the injunction. The district court enjoined only restrictions on
education-related compensation or benefits “that may be
made available from conferences or schools.” App. to Pet.
for Cert. in No. 20–512, at 167a, ¶1 (emphasis added). Accordingly, as the student-athletes concede, the injunction
“does not stop the NCAA from continuing to prohibit compensation from” sneaker companies, auto dealerships,
boosters, “or anyone else.” Brief for Respondents 47–48; see
also Brief for United States as Amicus Curiae 33. The
NCAA itself seems to understand this much. Following the
district court’s injunction, the organization adopted new
regulations specifying that only “a conference or institution” may fund post-eligibility internships. See Decl. of M.
Boyer in No. 4:14–md–02541, ECF Doc. 1302–2, p. 6 (ND
Cal., Sept. 22, 2020) (NCAA Bylaw 16.3.4(d)).
Even when it comes to internships offered by conferences
and schools, the district court left the NCAA considerable
flexibility. The court refused to enjoin NCAA rules prohibiting its members from providing compensation or benefits
Cite as: 594 U. S. ____ (2021)
33
Opinion of the Court
unrelated to legitimate educational activities—thus leaving
the league room to police phony internships. As we’ve observed, the district court also allowed the NCAA to propose
(and enforce) rules defining what benefits do and do not relate to education. App. to Pet. for Cert. in No. 20–512, at
168a, ¶4. Accordingly, the NCAA may seek whatever limits
on paid internships it thinks appropriate. And, again, the
court stressed that individual conferences may restrict internships however they wish. Id., at 169a, ¶6. All these
features underscore the modesty of the current decree.
Second, the NCAA attacks the district court’s ruling that
it may fix the aggregate limit on awards schools may give
for “academic or graduation” achievement no lower than its
aggregate limit on parallel athletic awards (currently
$5,980 per year). Id., at 168a–169a, ¶5; D. Ct. Op., at 1104.
This, the NCAA asserts, “is the very definition of a professional salary.” Brief for Petitioner in No. 20–512, at 48.
The NCAA also represents that “[m]ost” of its currently permissible athletic awards are “for genuine individual or team
achievement” and that “[m]ost . . . are received by only a few
student-athletes each year.” Ibid. Meanwhile, the NCAA
says, the district court’s decree would allow a school to pay
players thousands of dollars each year for minimal achievements like maintaining a passing GPA. Ibid.
The basis for this critique is unclear. The NCAA does not
believe that the athletic awards it presently allows are tantamount to a professional salary. And this portion of the
injunction sprang directly from the district court’s finding
that the cap on athletic participation awards “is an amount
that has been shown not to decrease consumer demand.” D.
Ct. Op., at 1088. Indeed, there was no evidence before the
district court suggesting that corresponding academic
awards would impair consumer interest in any way. Again,
too, the district court’s injunction affords the NCAA leeway.
It leaves the NCAA free to reduce its athletic awards. And
it does not ordain what criteria schools must use for their
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Opinion of the Court
academic and graduation awards. So, once more, if the
NCAA believes certain criteria are needed to ensure that
academic awards are legitimately related to education, it is
presently free to propose such rules—and individual conferences may adopt even stricter ones.
Third, the NCAA contends that allowing schools to provide in-kind educational benefits will pose a problem. This
relief focuses on allowing schools to offer scholarships for
“graduate degrees” or “vocational school” and to pay for
things like “computers” and “tutoring.” App. to Pet. for
Cert. in No. 20–512, at 167a–168a, ¶2. But the NCAA fears
schools might exploit this authority to give student-athletes
“ ‘luxury cars’ ” “to get to class” and “other unnecessary or
inordinately valuable items” only “nominally” related to education. Brief for Petitioner in No. 20–512, at 48–49.
Again, however, this over-reads the injunction in ways we
have seen and need not belabor. Under the current decree,
the NCAA is free to forbid in-kind benefits unrelated to a
student’s actual education; nothing stops it from enforcing
a “no Lamborghini” rule. And, again, the district court invited the NCAA to specify and later enforce rules delineating which benefits it considers legitimately related to education. To the extent the NCAA believes meaningful
ambiguity really exists about the scope of its authority—
regarding internships, academic awards, in-kind benefits,
or anything else—it has been free to seek clarification from
the district court since the court issued its injunction three
years ago. The NCAA remains free to do so today. To date,
the NCAA has sought clarification only once—about the
precise amount at which it can cap academic awards—and
the question was quickly resolved. Before conjuring hypothetical concerns in this Court, we believe it best for the
NCAA to present any practically important question it has
in district court first.
When it comes to fashioning an antitrust remedy, we
acknowledge that caution is key. Judges must resist the
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35
Opinion of the Court
temptation to require that enterprises employ the least restrictive means of achieving their legitimate business objectives. Judges must be mindful, too, of their limitations—as
generalists, as lawyers, and as outsiders trying to understand intricate business relationships. Judges must remain aware that markets are often more effective than the
heavy hand of judicial power when it comes to enhancing
consumer welfare. And judges must be open to clarifying
and reconsidering their decrees in light of changing market
realities. Courts reviewing complex business arrangements should, in other words, be wary about invitations to
“set sail on a sea of doubt.” United States v. Addyston Pipe
& Steel Co., 85 F. 271, 284 (CA6 1898) (Taft, J.). But we do
not believe the district court fell prey to that temptation.
Its judgment does not float on a sea of doubt but stands on
firm ground—an exhaustive factual record, a thoughtful legal analysis consistent with established antitrust principles, and a healthy dose of judicial humility.
*
Some will think the district court did not go far enough.
By permitting colleges and universities to offer enhanced
education-related benefits, its decision may encourage
scholastic achievement and allow student-athletes a measure of compensation more consistent with the value they
bring to their schools. Still, some will see this as a poor
substitute for fuller relief. At the same time, others will
think the district court went too far by undervaluing the
social benefits associated with amateur athletics. For our
part, though, we can only agree with the Ninth Circuit:
“ ‘The national debate about amateurism in college sports is
important. But our task as appellate judges is not to resolve
it. Nor could we. Our task is simply to review the district
court judgment through the appropriate lens of antitrust
law.’ ” 958 F. 3d, at 1265. That review persuades us the
district court acted within the law’s bounds.
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Opinion of the Court
The judgment is
Affirmed.
Cite as: 594 U. S. ____ (2021)
1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–512 and 20–520
_________________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
PETITIONER
20–512
v.
SHAWNE ALSTON, ET AL.
AMERICAN ATHLETIC CONFERENCE, ET AL.,
PETITIONERS
20–520
v.
SHAWNE ALSTON, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2021]
JUSTICE KAVANAUGH, concurring.
The NCAA has long restricted the compensation and benefits that student athletes may receive. And with surprising success, the NCAA has long shielded its compensation
rules from ordinary antitrust scrutiny. Today, however, the
Court holds that the NCAA has violated the antitrust laws.
The Court’s decision marks an important and overdue
course correction, and I join the Court’s excellent opinion in
full.
But this case involves only a narrow subset of the NCAA’s
compensation rules—namely, the rules restricting the
education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or
vocational schools. The rest of the NCAA’s compensation
rules are not at issue here and therefore remain on the
books. Those remaining compensation rules generally re-
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NATIONAL COLLEGIATE ATHLETIC ASSN. v. ALSTON
KAVANAUGH, J., concurring
strict student athletes from receiving compensation or benefits from their colleges for playing sports. And those rules
have also historically restricted student athletes from receiving money from endorsement deals and the like.
I add this concurring opinion to underscore that the
NCAA’s remaining compensation rules also raise serious
questions under the antitrust laws. Three points warrant
emphasis.
First, the Court does not address the legality of the
NCAA’s remaining compensation rules. As the Court says,
“the student-athletes do not renew their across-the-board
challenge to the NCAA’s compensation restrictions. Accordingly, we do not pass on the rules that remain in place
or the district court’s judgment upholding them. Our review is confined to those restrictions now enjoined.” Ante,
at 14.
Second, although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules,
the Court’s decision establishes how any such rules should
be analyzed going forward. After today’s decision, the
NCAA’s remaining compensation rules should receive ordinary “rule of reason” scrutiny under the antitrust laws. The
Court makes clear that the decades-old “stray comments”
about college sports and amateurism made in National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla.,
468 U. S. 85 (1984), were dicta and have no bearing on
whether the NCAA’s current compensation rules are lawful. Ante, at 21. And the Court stresses that the NCAA is
not otherwise entitled to an exemption from the antitrust
laws. Ante, at 23–24; see also Radovich v. National Football League, 352 U. S. 445, 449–452 (1957). As a result, absent legislation or a negotiated agreement between the
NCAA and the student athletes, the NCAA’s remaining
compensation rules should be subject to ordinary rule of
reason scrutiny. See ante, at 18–19.
Third, there are serious questions whether the NCAA’s
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3
KAVANAUGH, J., concurring
remaining compensation rules can pass muster under ordinary rule of reason scrutiny. Under the rule of reason, the
NCAA must supply a legally valid procompetitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification.
The NCAA acknowledges that it controls the market for
college athletes. The NCAA concedes that its compensation
rules set the price of student athlete labor at a below-market rate. And the NCAA recognizes that student athletes
currently have no meaningful ability to negotiate with the
NCAA over the compensation rules.
The NCAA nonetheless asserts that its compensation
rules are procompetitive because those rules help define the
product of college sports. Specifically, the NCAA says that
colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is
that the student athletes are not paid.
In my view, that argument is circular and unpersuasive.
The NCAA couches its arguments for not paying student
athletes in innocuous labels. But the labels cannot disguise
the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the
restaurants in a region cannot come together to cut cooks’
wages on the theory that “customers prefer” to eat food from
low-paid cooks. Law firms cannot conspire to cabin lawyers’
salaries in the name of providing legal services out of a “love
of the law.” Hospitals cannot agree to cap nurses’ income
in order to create a “purer” form of helping the sick. News
organizations cannot join forces to curtail pay to reporters
to preserve a “tradition” of public-minded journalism.
Movie studios cannot collude to slash benefits to camera
crews to kindle a “spirit of amateurism” in Hollywood.
Price-fixing labor is price-fixing labor. And price-fixing
labor is ordinarily a textbook antitrust problem because it
extinguishes the free market in which individuals can otherwise obtain fair compensation for their work. See, e.g.,
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NATIONAL COLLEGIATE ATHLETIC ASSN. v. ALSTON
KAVANAUGH, J., concurring
Texaco Inc. v. Dagher, 547 U. S. 1, 5 (2006). Businesses like
the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of
the product. Or to put it in more doctrinal terms, a monopsony cannot launder its price-fixing of labor by calling it
product definition.
The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges
every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure
salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom
are African American and from lower-income backgrounds,
end up with little or nothing. See Brief for African American Antitrust Lawyers as Amici Curiae 13–17.
Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing. But the
NCAA’s business model of using unpaid student athletes to
generate billions of dollars in revenue for the colleges raises
serious questions under the antitrust laws. In particular,
it is highly questionable whether the NCAA and its member
colleges can justify not paying student athletes a fair share
of the revenues on the circular theory that the defining
characteristic of college sports is that the colleges do not pay
student athletes. And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its
remaining compensation rules.
If it turns out that some or all of the NCAA’s remaining
compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue. Among them: How would paying greater compensation
to student athletes affect non-revenue-raising sports?
Could student athletes in some sports but not others receive
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KAVANAUGH, J., concurring
compensation? How would any compensation regime comply with Title IX? If paying student athletes requires something like a salary cap in some sports in order to preserve
competitive balance, how would that cap be administered?
And given that there are now about 180,000 Division I student athletes, what is a financially sustainable way of fairly
compensating some or all of those student athletes?
Of course, those difficult questions could be resolved in
ways other than litigation. Legislation would be one option.
Or colleges and student athletes could potentially engage in
collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated
for a share of league revenues. Cf. Brown v. Pro Football,
Inc., 518 U. S. 231, 235–237 (1996); Wood v. National Basketball Assn., 809 F. 2d 954, 958–963 (CA2 1987) (R. Winter, J.). Regardless of how those issues ultimately would be
resolved, however, the NCAA’s current compensation regime raises serious questions under the antitrust laws.
To be sure, the NCAA and its member colleges maintain
important traditions that have become part of the fabric of
America—game days in Tuscaloosa and South Bend; the
packed gyms in Storrs and Durham; the women’s and men’s
lacrosse championships on Memorial Day weekend; track
and field meets in Eugene; the spring softball and baseball
World Series in Oklahoma City and Omaha; the list goes
on. But those traditions alone cannot justify the NCAA’s
decision to build a massive money-raising enterprise on the
backs of student athletes who are not fairly compensated.
Nowhere else in America can businesses get away with
agreeing not to pay their workers a fair market rate on the
theory that their product is defined by not paying their
workers a fair market rate. And under ordinary principles
of antitrust law, it is not evident why college sports should
be any different. The NCAA is not above the law.